Friday, February 13, 2015

As the U.S. continues to bomb the Islamic State in Iraq and Syria, President Obama asked Congress today to approve a new legal framework for the ongoing military campaign.

The administration’s draft law “would not authorize long-term, large-scale ground combat operations” like Iraq and Afghanistan, Obama wrote in aletter accompanying the proposal. The draft’s actual language is vague, allowing for ground troops in what Obama described as “limited circumstances,” like special operations and rescue missions.

The authorization would have no geographic limitations and allow action against “associated persons or forces” of the Islamic State. It would expire in three years.

Speaking at New York University School of Law this afternoon, Harold Koh, the State Department’s legal adviser until 2013, said that the Obama administration is currently on shaky legal grounds, tying the airstrikes to a law passed days after 9/11.

Koh said that stretching the law like that is inconsistent with Obama’s stated goal of bringing the U.S. off of “perpetual wartime footing.” Acting without a new authorization from Congress “doesn’t promote the end of the ‘Forever War,’” Koh said.

Since August, the U.S. and other nations have carried out more than 2,300 airstrikes, according to data released by the U.S. military and compiled by journalist Chris Woods.

The administration currently justifies those airstrikes by invoking self-defense and the 2001 Authorization for Use of Military Force. Passed one week after the September 11th, 2001 and just 60 words long, that law in broad language gave the White House the power to go after anyone connected to the 9/11 attacks.

Thirteen years on, it is still the main legal backing for the war in Afghanistan and for the targeted killings of alleged Al Qaeda affiliates in Pakistan, Yemen, and Somalia–though there is now a growing consensus among legal scholars and some members of Congress that the law is being used to justify military action it wasn’t originally intended to cover.

Tying ISIS to the 9/11 attacks on the basis of a tenuous relationship to Al Qaeda is probably taking things too far, Koh and others argue.

Obama maintains that he too would like to see the 2001 law narrowed and eventually repealed. But the White House ISIS proposal doesn’t address it, although it would roll back the 2002 law underpinning the war in Iraq.

Congress decided to postpone debating an ISIS authorization until after the midterm elections last fall—voting either way on a new war seemed politically dicey to both parties.

It’s possible that legislators won’t come to an agreement on the White House proposal, with many Democrats saying it’s still too open-ended, and some Republicans chafing at the idea of adding more restrictions.

Senator Tim Kaine, D-Va., said in a statement that he was “concerned about the breadth and vagueness of the U.S. ground troop language” in the White House draft. It says that it does not permit “enduring offensive ground combat operations,” without further clarification.

In his letter to Congress, Obama wrote that the administration’s goal was to “degrade and defeat” ISIS. That may be the rhetoric, Koh said, but the actual strategy is probably closer to, “drive them out of Iraq and back into Syria, which is a country that is already in total chaos.”

Koh also expressed concern that airstrikes against ISIS have the side effect of bolstering Syrian president Bashar al-Assad in the country’s civil war, even though the U.S. position is still that Assad “must go.”

“The future of Syria is a horrible thing to contemplate,” said Koh.

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